THE BRITISH JUSTICE SYSTEM IN THE 18TH & 19TH CENTURIES
2. The early days of justice
3. Justice in the 18th and 19th centuries
4. The court system
6. Judicial reform in the 1840s and 1850s
As Britain moved from a primarily rural society to become the world's first urbanized, industrialised nation in the 18th and 19th centuries, the justice system underwent its own transformation.
In the rural communities and small towns of the mid-18th century, informal sanctions were often effective and the criminal justice system was a last resort. There were no professional police and justices of the peace were amateurs - justice was administered quickly and with little protection for the offender.
By the mid-19th century, the legal system had become much more formalized. Anxiety about the dangers of crime (mostly by the propertied classes) grew as the rural poor moved to the growing cities where they were no longer under the social control of the squire, parson and village community. This eventually led to the implementation of a professional police force and a specialised legal system staffed by trained, professional lawyers. The court system also evolved to meet the changing needs of society.
2. The early days of justice
The English legal system grew from Anglo-Saxon times when Local courts were presided over by a lord or one of his stewards and the King’s court by the King himself. The very first judges, in the 12th century, were court officials (often members of the clergy) who advised the King on the settlement of disputes. Magistrates (or justices of the peace) also evolved from this time when ‘good and lawful men’ were commissioned to keep the King’s peace.
For many centuries, with the King as principal lawmaker and the judges as interpreters of the law, the potential conflict between government and the judiciary created a difficult relationship, and accusations of corruption were commonplace.
Eventually, despite some tumultuous periods with royalty, the judiciary became more independent and in 1701 the Act of Settlement ensured judges’ salaries were paid out of public funds (not those of the monarch) and prevented them from being capriciously removed from office ‘unless by due cause of law’.
3. Justice in the 18th and 19th centuries
3.1 Law enforcement
In the 18th century, the prosecution of criminals remained largely in the hands of victims themselves who were left to organise their own criminal investigations. Every parish was obliged to have one or two constables who were selected every year from local communities and were unpaid volunteers. However, there was often little motive for victims of crime to press charges, as they could end up bearing the costs of legal proceedings.
In London, a system of paid watchmen operated across different parishes. Known as ‘Charlies’, they performed various duties in addition to the detection and arrest of suspected criminals, including escorting home drunkards and ‘crying’ the time through the streets of their neighbourhood during the night. London’s watchmen were widely criticized for being old, decrepit and ineffective, though many probably served a useful function in their local communities.
In 1751, London magistrate Henry Fielding founded the Bow Street Runners, a more professional force of officers who, for the first time, provided a permanent body of armed men to carry out investigations and arrests.
In 1829, Sir Robert Peel's Metropolitan Police Act introduced a new system of paid police in London, often nicknamed ‘Bobbies’ or ‘Peelers’. This system was adopted more widely across the country after the Municipal Corporations Act of 1835. The police increasingly took over the role (and cost) of apprehending and convicting criminals from private prosecutors.
3.2 Justices of the Peace
Justices of the Peace (magistrates) were part-time, unpaid officials entrusted with local law enforcement. They were usually drawn from the ranks of landowners and other leading local figures and performed several different roles in their communities. As well as acting as judges in courts of ‘petty sessions’ and ‘quarter sessions’, they supervised local officials and the operation of the Poor Law, fixed wages and were responsible for licensing ale houses and supervising weights and measures.
As unpaid, unqualified officials drawn from the ranks of the wealthy, allegations of corruption were rife.
4. The court system
4.1 Petty Sessions
Most criminal cases during the 1700s were brought before local magistrates (justices of the peace), who dealt with petty crimes (petty criminal offences, moral offences, poor law administration etc.). These hearings or sessions operated in a summary jurisdiction, namely without a jury. A magistrate could also commit a person to trial by jury in a higher court. At this stage the accused would either be held in prison or released on bail pending trial.
Many minor offences could be adjudicated by a single justice or pair of justices and the scope of summary jurisdiction increased substantially in the 18th and 19th centuries. Those convicted under summary justice might be punished with a fine, whipping or commitment to a house of correction.
4.2 Sessions of the Peace
More serious misdemeanours (petty offences) and some felonies were forwarded on to the Sessions of the Peace. Justices of the peace heard the cases of all those bound over by recognizance (bail) or committed to prison for jury trial. Sessions of the Peace were held eight times a year for the City of London and Middlesex, and four times a year for Westminster.
Local courts (in the rural areas) conducted criminal trials four times a year and were known as 'quarter sessions'. Verdicts were reached by a jury and sentences were passed down by the presiding chairman and justices of the peace. Quarter sessions could try crimes such as larceny (thefts of low-value goods) and some felonies, including thefts of more valuable items and assault.
4.3 Old Bailey Sessions & the Central Criminal Court
The vast majority of felonies (the most serious offences, some of which at least were or had been punishable by death) and some serious misdemeanours were tried at the higher court of the Old Bailey, under commissions of gaol delivery. The Old Bailey Sessions met eight times a year until 1834, when the Central Criminal Court Act (1834) changed the name of the court, enlarged its jurisdiction and increased the number of sessions to between ten and twelve each year.
4.4 Quarterly Assizes
More serious crimes and capital offences (rape or murder) were referred to Crown Courts, which sat at ‘quarterly assizes’ (circuit courts four times a year) in large towns or at the Old Bailey in London. For ordinary citizens, trials at these higher courts were immensely intimidating experiences. Courtrooms were sprinkled with herbs and scented flowers in order to prevent the spread of disease and to mask the smell of unwashed prisoners, while much of the courts’ daily business was conducted in Latin. The majority of felony cases did not involve defence barristers until the end of the 18th century and witnesses were usually examined directly by the judge and often by members of the jury. Most cases lasted for only a matter of minutes.
4.5 King's or Queen's Bench
At the highest level - amongst the courts of Westminster - the King’s or Queen's Bench (crown side) heard a relatively small number of ‘serious misdemeanour’ cases that were brought upon criminal information, without an indictment (formal charge) having previously been laid. It also acted as a court of review (appeal) for summary convictions and cases indicted at the Sessions of the Peace or the Old Bailey.
5.1 The Bloody Code
The 18th century criminal justice system relied heavily on the existence of ‘The Bloody Code’. The English Penal Code in the period from 1723 to 1820 became increasingly severe, mandating the death penalty for an ever-increasing number of offences and this became known as ‘The Bloody Code’. In 1723 the first of the (Waltham) Black Acts was introduced and their continual expansion over the next ninety years increased the scope of capital punishment. In 1688 there were 50 crimes for which a person could be put to death. By 1765 this had risen to about 160 and to 222 by 1810.
Most punishments during the 18th century were held in public. Executions were elaborate and shocking affairs, designed to act as a deterrent to those who watched. Until 1783 London executions took place at Tyburn eight times a year, where as many as twenty felons were hanged at the same time. Prisoners were transported to the gallows along a three-mile route by cart, often followed by a huge, jeering crowd of thousands of people. Prisoners were executed in front of these noisy, riotous audiences and many hangings resembled more of a fair than a solemn legal ceremony.
5.2 Women under The Bloody Code
Nonetheless, only twenty or so crimes normally resulted in execution and in the majority of cases (69 – 70%) the death sentence was commuted. The huge number of capital crimes was inflated not only by endless acts of Parliament but also by the minute subdivision of capital offences into individual categories. For instance, there were seven individual offences of arson each of which carried the death penalty.
The country was run by the property-owning middle classes, keen to protect their property from the large underclass who were seen as feckless and whose lives were considered to be of little value. From 1735 to 1800 an astounding 1596 females were condemned to death with 1243 being reprieved and 356 executed - 32 by burning and the remainder by hanging. A total of 169 women and girls were executed for crimes against property while 187 were to suffer for murder. Most of these women were convicted on circumstantial evidence or on the strength of their confessions and after very short hearings - often without any real defence in trials that would be considered wholly inadequate by modern standards.
The non-murder cases were recorded as follows:
|Robbery in dwelling house||35|
|High Treason Coining||8|
|Stealing in a shop||6|
|Privately stealing from a person (pick pocketing)||5|
|Returning from transportation||3|
With over a thousand men and women a year being sentenced to death, although only a small proportion were actually executed, there was growing activism in the early part of the 19th century to reduce the number of crimes for which people could suffer the ultimate punishment. Between 1832 and 1837, Sir Robert Peel's government introduced various pieces of legislation to reduce the number of capital crimes. Sheep, cattle and horse stealing were removed from the list in 1832; followed by sacrilege, letter stealing, returning from transportation in 1834-5; forgery and coining in 1836; arson, (except of an occupied dwelling house), burglary and theft from a dwelling house in 1837.
In the period 1800 to 1833 a further thirty three women were hanged for crimes other than murder. The last of these was Charlotte Long who was hanged for arson in August 1833 at Gloucester.
Sentences of transportation increased in the 18th century - between 1718 and the outbreak of the American War of Independence in 1775, over 50,000 men, women and children from Britain and Ireland were transported to the British colonies of the Caribbean and North America.
Juries and judges were usually men of property who were afraid of the apparent rise in crimes against property but, by the end of the 18th century, they were also becoming more reluctant to pass down the death sentence. Since most gaols were only temporary lockups, transportation was one of the few alternatives that the legal system offered to either hanging or freeing a criminal; judges, therefore, increasingly resorted to sentences of transportation.
After Britain lost the war with the America, it was prevented from transporting any more criminals to America and was forced to look elsewhere to relocate its burgeoning prison population. Transportation from Britain ceased from 1776 to 1788 and the rapidly growing prison population was housed on ship hulks anchored in rivers and along the sheltered coastline of southern England. The hulks quickly became disease-ridden, with one third of the prisoners dying while on board.
The Discovery used as a Prison Hulk at Deptford from 1818-1834. (Source: Wikimedia)
In 1783 James Matra, who had been a junior officer on James Cook’s 1768 voyage to the Pacific, and therefore one of the few Europeans to have seen the continent of Australia, proposed to the British Government that Botany Bay was a suitable location for a colony. Between 1788 and 1868 more than 162,000 convicts were transported to Australia as punishment for crimes committed in Britain and Ireland.
6. Judicial reform in the 1840s and 1850s
From the early 19th century, as the workload of the courts increased, Parliament was pressed to take action to reform the operation of the judicial system. Between 1805 and 1842 the number of prosecutions in courts of assize and quarter sessions rose from 4,600 to 31,300. This was an outcome of rapid urbanisation and the development of new police forces acting as vigilant prosecutors.
To lighten the burden of these courts, in 1848 Parliament passed its Summary Jurisdiction Act giving the petty sessions or magistrates' courts, increased powers to try a broader range of criminal charges. The Act also enabled lesser offences to be tried without a jury.
Another significant reform was the Small Debts Act of 1846 which abolished the old courts of requests that dealt with civil matters and replaced them with a new network of some five hundred county courts throughout England and Wales. The small claims maximum was raised to £50. The courts soon established a reputation for efficiency and were often known as 'the poor man's court'. From March to December 1847 alone they dealt with 429,215 claims.
https://librariesaustralia.nla.gov.au/search/display?dbid=auth&id=35275361#:~:text=The%20commission%20of%20general%20gaol,or%20her%20crime%20may%20be. Courts of Oyer and Terminer and General Gaol Delivery. Commissions of ‘oyer and terminer’ are issued by the sovereign to judges of assize, ordering them to inquire into treasons, felonies, and misdemeanours committed in the county specified in the commission, and to hear and determine (‘oyer et terminer’) the same according to law. The commission of ‘general gaol delivery’ empowers them to try and deliver every prisoner who shall be in the gaol when the judges arrive at the circuit town, whatever his or her crime may be.
 Burning of Buildings, etc. Act 1837: ‘That whosoever shall unlawfully and maliciously set fire to any Dwelling House, any Person being therein, shall be guilty of Felony, and being convicted shall suffer Death.’ Jane Smith was convicted under this provision at the Warwick Assizes in 1843 and sentenced to death which was commuted to life and she was transported to VDL in 1844, aged 14, aboard Emma Eugenia. See FCRC database No 4858.
Page published 17/03/2023 by Helen Menard.